HomeMy WebLinkAbout08-600 DilorioJames A. Dilorio
8 Beilman Court
Mechanicsburg, PA 17055
Dear Mr. Dilorio:
ADVICE OF COUNSEL
December 4, 2008
08 -600
This responds to your letters dated October 17, 2008, and October 28, 2008, by
which you requested advice from the Pennsylvania State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would impose any restrictions upon an annuitant who, following
retirement from the Pennsylvania Department of Education ( "Department of Education "),
Bureau of Career and Technical Education ( "BCTE "), has provided services to the
BCTE under the 95 -day annuitant program, when: (1) the annuitant has already utilized
the maximum amount of time allowable under the 95 -day program for calendar year
2008; and (2) the BCTE is interested in retaining the annuitant to provide consulting
services as an independent contractor.
Facts: You request an advisory from the Pennsylvania State Ethics Commission
regarding the post - employment restrictions of the Ethics Act. You have submitted facts
that may be fairly summarized as follows.
On January 18, 2008, you retired from Commonwealth employment as a
Specialized Career and Technical Education Adviser 2 — Business Education ( "Adviser
2') with the BCTE. You have submitted a copy of your official position description for
your former position as an Adviser 2, which document is incorporated herein by
reference. A copy of the job classification specifications for the position (job code
2247B) has been obtained and is also incorporated herein by reference.
Following your retirement from the Commonwealth, you returned to work with the
BCTE as an annuitant under the 95 -day annuitant program (see, 71 Pa.C.S. §
5706(A.1)) in a position that is not identified by title in the submitted facts, but that is
hereinafter referred to as "Annuitant." You were hired as an Annuitant on February 19,
2008. Your 95 days of service under the annuitant program ended on October 10,
2008. You have submitted a copy of an official position description ( "the Annuitant
Position Description ") for your former position as an Annuitant, which document is
incorporated herein by reference. It is administratively noted that the Annuitant Position
Description does not list a job title, working title, or job code for your position as an
Annuitant. Your duties and authority in the position included, inter alia: (1) analyzing
self- assessments from local education agencies ("LEAs ") with approved programs in
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December 4, 2008
Page 2
career and technical education to determine their compliance with laws, regulations,
and standards; and (2) providing specialized field -based audit services to assist LEAs to
meet corrective action plan compliance items.
You state that due to your experience and involvement in the development of the
evaluation system and technical assistance program to school entities, BCTE would be
interested in retaining you as an independent contractor from time to time to continue to
provide technical assistance services. You state that as an independent contractor for a
limited number of days, you would be able to provide highly specialized knowledge and
experience to the BCTE. You state that as a paid consultant, you would be
representing the Department of Education /BCTE and not school entities. You further
state that BCTE pays consultant fees and expenses directly through internal agency
processes in the Department of Education as well as through contracts with other
entities.
Based upon the above submitted facts, you pose the following specific inquiries:
1. Whether the Ethics Act would permit you to provide consulting services to
the BCTE as an independent contractor; and
2. Whether the Ethics Act would permit you to serve as a volunteer on school
review teams without compensation but with reimbursement of expenses.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
In the former capacity as an Adviser 2 for the Department of Education, you
would be considered a public employee" subject to the Ethics Act and the Regulations
of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This
conclusion is based upon the position description and job classification specifications,
which when reviewed on an objective basis, indicate clearly that the power exists to
take or recommend official action of a non - ministerial nature with respect to one or more
of the following: contracting; procurement; administering or monitoring grants or
subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other
activity(ies) where the economic impact is greater than de minimis on the interests of
another person.
Consequently, upon retiring from the Commonwealth on January 18, 2008, you
became a "former public employee" subject to Section 1103(g) of the Ethics Act.
It is clear that when a former public employee returns to service as an annuitant
to again perform services falling within the Ethics Act's definition of "public employee"
(see, 65 Pa.C.S. § 1102), the annuitant again becomes a "public employee" subject to
the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004.
Based upon the duties and authority set forth in the Annuitant Position
Description, the necessary conclusion is that as an Annuitant for the BCTE commencing
February 19, 2008, you again became a "public employee" subject to the Ethics Act. 65
Pa.C.S. § 1102; Graves, supra; McGlathery, supra. Indeed, each time you would
commence providing such services under the 95 -day program, you would become a
"public employee" again, and each time you would terminate providing such services
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December 4, 2008
Page 3
under that program, you would once again became a former public employee subject to
the restrictions of Section 1103(g) of the Ethics Act. Graves, supra; McGlathery, supra.
While Section 1103(g) of the Ethics Act does not prohibit a former public
official /public employee from accepting a position of employment, it does restrict the
former public official /public employee with regard to "representing" a "person" before
the governmental body with which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself, Confidential
Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official /employee; (4) participating in any matters before the former
governmental body as to acting on behalf of a person; and (5) lobbying. Popovich,
Opinion 89 -005.
Dilorio, 08 -600
December 4, 2008
Page 4
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public official/
public employee on invoices submitted by his new employer to the former governmental
body, even though the invoices pertain to a contract that existed prior to termination of
public service, Shay, Opinion 91 -012. However, if such a pre - existing contract does not
involve the unit where the former public employee worked, the name of the former
public employee may appear on routine invoices if required by the regulations of the
agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former ublic
official /public employee may not be identified on documents submitted to the former
governmental body. The former public official /public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for the new employer.
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official /employee had influence or control but
extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at
290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R.
Under the facts that you have submitted, on October 10, 2008, when you ceased
providing services to the BCTE under the 95 -day program for annuitants because you
had utilized the maximum time allowable for 2008, you again became a "former public
employee" subject to Section 1103(g) of the Ethics Act, and the one -year period of
applicability of Section 1103(g) began anew.
The governmental body with which you have been associated upon termination
of the aforesaid service is the Department of Education in its entirety, including but not
limited to, the BCTE.
Therefore, until the expiration of a full one -year period following your October 10,
2008, termination of service as an Annuitant with the BCTE, or until you resume
providing services to the Department of Education under the 95 -day program in a
position falling within the Ethics Act's definition of "public employee," whichever comes
first, Section 1103(g) of the Ethics Act will apply to restrict you from engaging in conduct
that would constitute the representation of a `person," including yourself as a consultant,
before the Department of Education with promised or actual compensation. See,
Shaub, Order 1242.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
inquiries shall be addressed.
In response to your first specific inquiry, you are advised that when Section
1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from
working as a paid consultant for the Department of Education, including but not limited
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December 4, 2008
Page 5
to the BCTE. Performance of such consulting services would necessarily involve
prohibited representation before your former governmental body (for example, through
personal appearances before your former governmental body or the submission of
written documents containing your name to your former governmental body). See,
Shaub, supra; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005.
In response to your second specific inquiry, you are advised that Section 1103(g)
of the Ethics Act would not prohibit you from serving as an uncompensated volunteer on
school review teams where you would receive reimbursement only for reasonable and
necessary actual expenses incurred in such service. Cf., Moore, Opinion 04 -004;
Confidential Opinion, 97 -012.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a)
of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the
Ethics Act provide in part that no person shall offer or give to a public official /public
employee and no public official /public employee shall solicit or accept anything of
monetary value based upon the understanding that the vote, official action, or judgment
of the public official /public employee would be influenced thereby. Reference is made
to these provisions of the law not to imply that there has been or will be any
transgression thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code
of Conduct.
Conclusion: In the former capacity as a Specialized Career and Technical
Education Adviser 2 — Business Education with the Pennsylvania Department of
Education ( "Department of Education "), Bureau of Career and Technical Education
( "BCTE "), you would be considered a `public employee" subject to the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon retiring from
the Commonwealth on January 18, 2008, you became a "former public employee"
subject to Section 1103(g) of the Ethics Act. On February 19, 2008, when you returned
to work with the BCTE as an annuitant under the 95 -day annuitant program in a position
that is not identified by title in the submitted facts but that is hereinafter referred to as
"Annuitant," you again became a "public employee" subject to the Ethics Act. On
October 10, 2008, when you ceased providing services to the BCTE under the 95 -day
program for annuitants because you had utilized the maximum time allowable for 2008,
you again became a "former public employee" subject to Section 1103(g) of the Ethics
Act, and the one -year period of applicability of Section 1103(g) began anew. The
governmental body with which you have been associated upon termination of the
aforesaid service is the Department of Education in its entirety, including but not limited
to, the BCTE. Until the expiration of a full one -year period following your October 10,
2008, termination of service as an Annuitant with the BCTE, or until you resume
providing services to the Department of Education under the 95 -day program in a
position falling within the Ethics Act's definition of "public employee," whichever comes
first, Section 1103(g) of the Ethics Act will apply to restrict you from engaging in conduct
that would constitute the representation of a `person," including yourself as a consultant,
before the Department of Education with promised or actual compensation. When
Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would rohibit
you from working as a paid consultant for the Department of Education, including but
not limited to the BCTE. Section 1103(g) of the Ethics Act would not prohibit you from
serving as an uncompensated volunteer on school review teams where you would
receive reimbursement only for reasonable and necessary actual expenses incurred in
Dilorio, 08 -600
December 4, 2008
Page 6
such service. The restrictions as to representation outlined above must be followed.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 - 787 - 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel